An analysis of child marriage as a constitutional violation against the right of the child

Abstract

Child marriage is a global problem that has received much attention over the past years, subsequent to the increased recognition of children's human rights. Many people across the world, who are alive today, were forced into marriage from a young age. In addition, many children, irrespective of their gender, still continue to be subjected to marriage. This practice is harmful as it robs many children of their childhood, and it is unfortunate that these children have little or no say in when and whom they get to marry. In Africa, child marriages have been associated with cultural and/or religious practices. With particular reference to South Africa, the most common form of customary practice is ukuthwala, which is often carried out in rural areas and involves the practice of a man abducting a young girl with the intention of forcing the girl's family into negotiations for marriage. Child marriage is often defended by justifying it as a practice linked to culture and religion; both of which are rights protected under the South African Constitution. This raises a significant conflict between cultural rights and children's rights. This study focuses on child marriage and interrogates how it ultimately violates the constitutional rights of the children who are forced into this harmful practice. It emphasises that the South African Constitutional legal framework is insufficient in protecting children from child marriage as children's rights are ultimately superceded by cultural rights where cultural practices, such as child marriage, are carried out.